SZMXP v Minister for Immigration
[2009] FMCA 495
•21 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMXP v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 495 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant not believed – whether the Tribunal breached ss.424 and 424B of the Migration Act 1958 (Cth) in requesting information from the Department of Foreign Affairs and Trade considered. |
| Migration Act 1958 (Cth), ss.424, 424B, 441A Migration Regulations 1994 |
| SZEXZ v Minister for Immigration [2006] FCA 449 SZKCQ v Minister for Immigration [2008] FCAFC 119, (2008) 170 FCR 236 SZKTI v Minister for Immigration [2008] FCAFC 83; (2008) 168 FCR 256 SZLPO v Minister for Immigration [2009] FCAFC 51 SZNEC v Minister for Immigration [2009] FMCA 432 |
| Applicant: | SZMXP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2902 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 21 May 2009 |
| Delivered at: | Sydney |
| Delivered on: | 21 May 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Flood, pro bono publico |
| Counsel for the Respondents: | Mr P Reynolds |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2902 of 2008
| SZMXP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 24 September 2008 and was handed down on 16 October 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. Background facts are conveniently summarised in the Minister's written submissions filed on 14 May 2009. I adopt as background for the purposes of this judgment, with minor amendments, paragraph 2 through to paragraph 24 of those written submissions:
On 21 February 2008, the applicant, a citizen of Bangladesh, arrived in Australia (CB33).
On 3 March 2008, the applicant lodged an application for a protection visa with the Department of Immigration and Citizenship (“Department”) (court book “CB” 1-33).
On 22 April 2008, the applicant sent the Department further documents in support of his claims (CB63-74).
On 30 May 2008, the delegate refused to grant the applicant a protection visa (CB63-74).
On 23 June 2008, the applicant applied to the Tribunal for review of the delegate’s decision (CB75-78).
On 2 July 2008, the Tribunal wrote to the applicant, inviting him to attend a hearing before it on 13 August 2008 (CB82-83), which he attended and at which he gave evidence (CB87-88). Documents in support of the application were also provided to the Tribunal at the hearing (CB89-102).
On 15 August 2008, the Tribunal wrote to the Department of Foreign Affairs and Trade seeking information concerning the authenticity of documents submitted by the applicant (CB103). On 25 August 2008, the Tribunal received a response, which noted that various documents purportedly issued by the police in Bangladesh were fraudulent and that a letter purportedly issued by a judge was issued by an advocate but not necessarily a judge (CB104-105).
On 28 August 2008, the Tribunal wrote to the applicant inviting comment on the matters mentioned in the preceding paragraph (CB106-108). On 19 September 2008, the Tribunal received a response from the applicant (CB111-113).
On 16 October 2008, the Tribunal handed down its decision affirming the decision of the delegate to refuse the applicant a protection visa (CB125-156).
The applicant’s claims
The applicant’s claims to the delegate were as follows (CB28-29, 39-40):
a)from August 1991, he was a member of the Chattra League at the Naria Government College. He was subsequently elected President of the first year committee of his college, and was then elected the President of the Bangladesh Chattra League of the college committee;
b)after he finished college, he ceased his involvement in college politics but commenced involvement in politics in “our local area” and became a member of the Awami League. In June 1994, he was elected general secretary of the Janjira (Jagira) Thana Awami League committee. After two years, he was elected the president of the committee and an executive member of the Shariatpur District Awami League Committee;
c)in January 2001, the BNP and Muslim fundamentalists demonstrated to have the Awami League “down from power”. He faced heavy pressure from the BNP-Jammat activists, was declared a “stranger” in the Janjira area by the end of January 2001, and received a death threat in the second week of February 2001. Although he complained to the police, they were reluctant to receive his complaint because he was in an Awami League area and indicated that they had received complaints from the BNP hence would arrest him if he did not leave the area. The police also attended his house, asked his family where he was, indicated that there was a charge against him and that they would arrest him. Following this, he left Bangladesh;
d)after he left, BNP-Jammat came to power and harassed Awami League activists, destroyed his house, and threatened his family members; and
e)he returned to Bangladesh on 3 February 2008 following the appointment of the caretaker government. However, the police went to his home to arrest him hence he left the country again. The current government is anti-politician hence will not protect him.
The above claims were corrected and elaborated upon at the hearing before the Tribunal (CB132[27]-CB141[79]).
The Tribunal’s decision
The Tribunal’s reasoning is found at paragraphs [96] to [111] of its decision (CB150-154).
The Tribunal accepted that the applicant might have been a member of the Awami League and been involved as he claimed at school and college. However, it rejected the balance of his claims on the basis of an adverse credibility finding. This was for a number of reasons.
First, it found that the applicant’s testimony as to his leadership role and involvement with the Awami League and the difficulties he encountered as a result in 2001 and 2008 was inconsistent with independent country information, internally inconsistent and implausible ([98]).
Secondly, it found that the charges were a fabrication and that the applicant was not a witness of truth. The documents submitted in this regard were not authentic (on the basis of the Department of Foreign Affairs and Trade (“DFAT”) report) and it did not accept the applicant’s responses in relation to this ([99]).
Thirdly, the letter purportedly from a judge was a fabrication. This finding was based upon the implausibility of a judge sending such a letter and the information indicating that such letters were cheap and easy to obtain in Bangladesh ([100]).
Fourthly, the Tribunal did not accept that the applicant was President or General Secretary of the Janjira Thana Committee of the Awami League, due to the inconsistency between his evidence and the independent country information as to its structure ([101]).
Fifthly, the Tribunal did not accept that the applicant had been involved with the Shariatpur District Committee in any manner whatsoever, on the basis of the varying evidence as to whether he was an executive or general member, his inability to advise the Tribunal as to the number of Vice Presidents, his inability to explain how the committee worked, and his lack of knowledge concerning the office bearers ([102]).
Sixthly, in relation to the three documents purporting to support his involvement as President of the Jagira Thana and President of the Students League at Naria College, the Tribunal did not accept that these documents were genuine in view of country information concerning the prevalence of document fraud and the internal inconsistencies in the documents ([103]).
Seventhly, it did not accept that were he to return to Bangladesh he would become involved in politics and the Awami League given his initial evidence that he had seldom been in contact with the Awami League since 2001, his inability to name the mayor of Shaiatpur (who was an Awami League member) and his lack of involvement with the party in Australia ([104]).
Eighthly, the Tribunal did not accept his claims pertaining to his involvement with unions, given that he did not include this in his statement and had not been involved for seven years with the unions on his own account ([105]).
In relation to his claim that his brother had been arrested on false charges, beaten and imprisoned, the Tribunal was doubtful in this regard but, even if accepted, there was no suggestion that this would lead to the applicant suffering harm ([106]).
The Tribunal also noted that the applicant returned to Bangladesh in 2008, which suggested that he lacked a genuine fear ([109]). Further, it noted that the country information did not suggest that Awami League supporters would be harmed or that they could not access state protection ([110]).
The applicant relies upon an amended application filed on 30 January 2009. I incorporate the grounds and particulars in that amended application in this judgment:
(1) The Second Respondent committed jurisdictional error of law in that it failed to comply with the requirements of s.424(3)(a) of the Migration Act 1958.
Particulars
·On 15 August 2008 [t]he Second Respondent wrote to the Department of Foreign Affairs and Trade requesting information on the authenticity of a First Information Report and Charge Sheet that the Applicant had provided to the Second Respondent.
·This request for information was ultimately dealt with by the High Commission in Bangladesh. The High Commission in this instance was acting as the agent of the Second Respondent and was therefore required to comply with the same legislative procedures as those required of the Second Respondent.
·The High Commission requested information from the Officer in Charge of Jagira Police Station, Shariatpur. As this invitation for additional information was to a person it needed to be done in a manner that complied with s.424(3)(a).
(2)The Second Respondent committed jurisdictional error of law in that it failed to comply with the requirements of s.424B of the Migration Act 1958.
Particulars
·On 15 August 2008 [t]he Second Respondent wrote to the Department of Foreign Affairs and Trade requesting information on the authenticity of a First Information Report and Charge Sheet that the Applicant had provided to the Second Respondent.
·Contrary to s.424B(2) and regulation 4.35 of the Migration Regulations 1994 the Second Respondent specified a period in the invitation that was in excess of the prescribed period.
I conducted a show cause hearing in this matter on 16 February 2009 and made a show cause order based upon the grounds in the amended application. Since then the Full Federal Court has given judgment in the matter of SZLPO v Minister for Immigration [2009] FCAFC 51. I dealt with that decision in SZNEC v Minister for Immigration [2009] FMCA 432. In particular, I dealt with my understanding of the principles arising from the Full Court decision in [16] through to [22]:
I will now deal with the specific issues requiring consideration. On 1 May 2009 the Full Federal Court gave judgment in the case of SZLPO v Minister for Immigration [2009] FCAFC 51. That decision of the Full Court provides authoritative guidance on the interpretation of s.424 of the Migration Act, at least pending the resolution of outstanding proceedings in the High Court. The Full Court considered whether a distinction should be drawn between subsections (1) and (2) of s.424[1]. The Court noted that subsection (2) presupposes that the Tribunal already has some information. The Court further noted that subsection (1) gives no indication as to the method by which the Tribunal may get that information. However, the Full Court suggested that the methods available to the Tribunal were no more and no less than those that are expressed in or implied by the various sections of the Migration Act or implied by the general law.
The Full Court went on to explain[2] the distinction between subsections (1) and (2) as possibly being that, whereas subsection (1) is concerned with the Tribunal seeking to get information that the Tribunal considers relevant, subsection (2) is concerned with invitations to give additional information that the invitee may consider relevant. The Court considered that, on that view, subsection (1) would apply in all cases where the Tribunal actually seeks particular information which might include additional information, while subsection (2) would apply to the invitations to give any information that the invitee considers relevant and that is additional to information that he or she has previously given to the Tribunal. The Full Court did, however, express the view that it would be difficult to find a basis for this construction in the terms of the provision.
In giving a meaning to “additional information”[3] the Full Court considered s.424(3) was only workable if the invitee was a person who had already given information to the Tribunal and considered that the notion that additional information means additional information to any information already possessed by the Tribunal, whether it came from the invitee or not, was problematic. The Court considered that the preferred construction of “additional information” is information additional to information previously given to the Tribunal by the invitee. The Court also considered the meaning of the words in subsection (2) “without limiting subsection (1)”. The Full Court expressed the view those words suggest that in their absence, subsection (2) might be thought to limit subsection (1). A way in which subsection (2) might be thought to limit subsection (1) is by imposing on it the written invitation regime that is associated with subsection (2) and (3). Another way in which it might be thought to do so is by requiring an invitation in all cases as distinct from permitting an exercise of the Tribunal's coercive powers to get information. The Court suggested that subsection (2) is not a subset of subsection (1). The terms of subsection (2) are broad enough to permit an open‑ended invitation to give additional information provided only it is information additional to that which the invitee has previously given to the Tribunal.
The Full Court also considered[4] whether the word “person” in subsection (2) means only a natural person. The Minister had sought to distinguish SZLPP with SZKTI v Minister for Immigration [2008] FCAFC 83; (2008) 168 FCR 256 and SZKCQ v Minister for Immigration [2008] FCAFC 119, (2008) 170 FCR 236 on the ground that the Tribunal's requests on those occasions were addressed to natural persons, not corporations or bodies politic or government departments. The Full Court was inclined to accept the Minister's submission that subsection (2) provides the voluntary equivalent of the compulsive power to summon an identified person to attend the Tribunal and to give evidence[5].
The Court also noted that in s.441A the person to whom the document is to be given is called the “recipient”[6]. This is a person to whom it is possible to hand the document or has provided to the Tribunal an address of one kind or another. The Court expressed the view ss.441A(3), (4) and (5) suggested the recipient is a natural person. Finally, the Court expressed the view that the kind of issues into which the Tribunal is required to inquire suggests information that an individual is able to give concerning an individual. Having regard to the above reasoning the Court concluded that the word “person” in s.424(2) is limited by reference to a person whose identity is known at the time of extending the invitation.
Finally, the Full Court considered[7] whether a document was information and therefore additional information within s.424(2). The Court expressed the view that the two words mean different things, although a document may convey information. Section 424B(1) provides that if a person is invited under s.424 to give additional information, the Tribunal must specify the way in which it is to be given. This requirement would not make sense if it is to be applied to a document.
At [123] and [124] of their judgment their Honours specifically dealt with the issue of invitations to DFAT:
The Minister’s second submission is that since neither DFAT nor the National Ameer had previously given information to the Tribunal in the course of its review, any invitation by the Tribunal was not an invitation to give "additional information", with the result that s.424(2) was not engaged.
For the reasons given at [88] to [102] above, we agree.
[1] at [89]-[93]
[2] at [96]
[3] at [98]-[102]
[4] at [103]-[106]
[5] see s.427(3)(a)
[6] at [110]-[114]
[7] at [110]-[114]
The issues arising in this case are relevantly indistinguishable from those in SZNEC. The Minister deals with those issues in paragraphs 28 through to 34 of the written submissions, which I incorporate in this judgment:
The first ground of review asserts that the Tribunal engaged the High Commission in Bangladesh as its agent to obtain information and, therefore, the request by the said High Commission to the officer in charge of the Jagira Police Station in Shariatpur needed to comply with section 424(3)(a).
This ground of review ought to be rejected. In SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51, the Full Federal Court considered section 424 and, in particular, dealt with how requests by the Tribunal to the DFAT are to be analysed. A number of principles emerge:
a)First, information captured by s.424(2) of the Act must be “information additional to information previously given to the Tribunal by the invitee” ([99]-[100] per curiam);
b)Second, the word ‘person’ in s.424(2) means a ‘natural person’ ([103]-[108]);
c)Third, the word ‘person’ in s.424(2) is limited by reference to a person whose identity is known at the time of the extending of the invitation ([109]);
d)Fourth, a ‘document’ is not information although it may convey information and, therefore, s.424(2) does not apply to an invitation to a person to supply a document to the Tribunal ([110]-[114]);
e)Fifth, DFAT in certain circumstances is to be treated as the agent of the Tribunal. Where the invitation from the Tribunal leaves it to the recipient of the invitation to determine who to approach, it cannot be said that the recipient of the invitation is the agent of the Tribunal when it approaches a particular person ([118]). However, if the invitation from the Tribunal to the recipient requests the recipient to contact a particular person, this would suggest that the recipient was the Tribunal’s agent when it did so ([119]-[120]).
Applying the above principles to the present case:
a)the Tribunal sent a request to DFAT asking for advice on the authenticity of a letter signed by Judge Mohammad Shaifur Rahman and the First Information Report and Charge Sheet submitted by the Applicant;
b)the request to DFAT was not to a natural person, hence falls outside the scope of s.424;
c)DFAT cannot be said to be the agent of the Tribunal in the present case, because the request in this case did not specify a particular person but, rather, invited DFAT to advise in respect of the authenticity of certain documents and left it up to DFAT to determine how to provide that advice. Accordingly, unlike the situation in SZLPO, when DFAT contacted the officer in charge of the Jagira Police Station in Shariatpur, it was not as agent for the Tribunal (cf [121]). The Tribunal cannot be said to have extended an invitation to that officer through DFAT;
d)further, the information cannot be said to be ‘additional’ information because the officer in charge of the Jagira Police Station in Shariatpur had not previously given the Tribunal any information.
For the above reasons, s.424(2) was not applicable to the request by the Tribunal to DFAT, and the subsequent request by DFAT to the officer at the Jagira Police Station in Shariatpur. Therefore, this ground of review must fail.
Ground 2
The second ground of review complains that the letter to DFAT did not comply with s.424B(2) and reg. 4.35 of the Migration Regulations 1994 (Cth) by not specifying the prescribed period.
This ground of review must fail because DFAT is not a natural person and, therefore, s.424(2) is inapplicable to requests by the Tribunal of it.
Further, the giving of a s.424B(2) letter stipulating a period greater than the prescribed period does not amount to jurisdictional error and, in any event, relief should be refused as a matter of discretion: see SZEXZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 449 per Jacobson J at [49] as to it not being a jurisdictional error, and [51] as to the refusal of relief on the basis of discretion.
Counsel for the applicant maintains the grounds in the application on a protective basis, notwithstanding the decision of the Full Court in SZLPO, particularly having regard to the fact that there are outstanding proceedings dealing with the same issues in the High Court of Australia.
Counsel for the Minister pointed out that the Full Court has vacated its order dismissing one application dealt with in SZLPO but that does not have a bearing on the Tribunal's reasons concerning s.424 of the Migration Act 1958 (Cth) (“the Migration Act”). I understand that the reason the Full Court vacated its dismissal order was because there is an unresolved issue in that case concerning s.424A of the Migration Act.
In my view, it is clear that the outcome in this case is determined by the decision of the Full Court in SZLPO. Based upon the reasoning of the Full Court, and my own analysis of that reasoning in SZNEC, there was no breach of s.424 or s.424B in this case. Section 424(2) does not apply because the Tribunal was not seeking additional information from a natural person. Neither, on the facts of this case, was DFAT acting as the agent of the Tribunal. Because s.424(2) does not apply, neither does s.424B. It follows that no jurisdictional error in the decision of the Tribunal has been established and the application must be dismissed as a privative clause decision. I will so order.
The application having been dismissed, costs should follow the event. The Minister's costs are substantial, but the Minister seeks costs fixed in the amount of $6,400. That amount is above scale, but additional costs are warranted, having regard to the need to deal with difficult legal issues and the decision of the Full Court in SZLPO. However, I am not minded to award costs in this case in a greater amount than those awarded in SZNEC as it seems to me that the work involved in both cases was relevantly the same. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application fixed in the amount of $6,000.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 26 May 2009
6
2